Tuesday, 2 July 2013

I have always felt
that on matters of social justice when cases are brought to challenge a
perceived infringement of rights, justices do take their time to give their
opinions which might become case law if those opinions go unchallenged afterwards.

When it comes to
the issue of the separation of religion and state,
the justices in the United Kingdom have been lucid and comprehensive in the
views they have expressed that one cannot but agree with them.

Just last week, the
Supreme Court of the United States (SCOTUS) that many will say have a rather
conservative leaning on many issues ruled on the matter of same-sex
relationships and the recognition of such relationships, again, I see a
universal application of their thinking joining case law when such issues arise
elsewhere in the world – the arguments are well made.

Liberty for all

There are many SCOTUS
opinions, opinions being the majority verdicts searchable at the Cornell University Law School Portal, many of
which I cannot cover but going by the opinions of Justice
Anthony Kennedy who apparently has been at the centre of gay rights for the
past decade, there are gems to take away.

It is clear that in
the 21st Century, we are faced with issues that must compel us to promote
liberty, ensure dignity, remove inequality and excoriate humiliation, these are
the core elements of that govern every civil rights causes and it must stand
paramount in quest for civilising our humanity daily.

I have a liberal to
libertarian slant on these matters and I have liberally quoted from my sources
at NPR and Cornell University Law School to support the views and understanding
I have of the opinions.

We are not in a police state

The SCOTUS in a 6-3
decision in 2003 struck down the Texas “Homosexual
Conduct” law that criminalised some sexual acts in Lawrence v. Texas, this was a case where two gay
men engaged in consensual sex in a private home were arrested, charged and
jailed – more background here – liberty and
freedom formed the basis of the opinions.

“Liberty protects
the person from unwarranted government intrusions into a dwelling or other
private places. In our tradition the state is not omnipresent in the home. And
there are other spheres of our lives and existence, outside the home, where the
state should not be a dominant presence.”

Clear as this is,
it suggests that the state should be limited in its access to dwelling places
and private places except where it is warranted, it however should not be a
dominant presence in our lives that it begins to operate like a police state –
if a person is not a resident of a police state, then the state must constrain
its surveillance into private affairs.

Autonomy or regulation

“Liberty presumes an autonomy of self that includes
freedom of thought, belief, expression, and certain intimate conduct.”

This again builds
on the foregoing except if the state intends to regulate thought, belief,
expression, and certain intimate conduct – then the question arises as to how
far the state will be allowed to regulate such for certain people until it
arrogates the responsibility to regulate it for all.

This becomes
pertinent when moralist laws are promulgated predicated on religion, culture,
traditions and much else, the state must not extent its function to civil
society to then encroach on the individual liberties of the people.

Mandating moral codes

Before, this view
is extrapolated to support licentiousness, the SCOTUS goes on to develop this
thinking.

“It must be
acknowledged, of course, that the Court in Bowers
was making the broader point that for centuries there have been powerful voices
to condemn homosexual conduct as immoral. The condemnation has been shaped by
religious beliefs, conceptions of right and acceptable behavior, and respect
for the traditional family. For many persons these are not trivial concerns but
profound and deep convictions accepted as ethical and moral principles to which
they aspire and which thus determine the course of their lives.”

Here, the court
acknowledges in 1986 that centuries old laws had deemed homosexual conduct as
immoral and agreed that the concerns of opponents of homosexuality were not
trivial.

However, in the following
excerpt, the SCOTUS returned to the role of guaranteeing liberty.

“The issue is
whether the majority may use the power of the state to enforce these views on
the whole society through operation of the criminal law. Our obligation is to
define the liberty of all, not to mandate our own moral code.”

Here, the court
curtails the power of the state by saying it should not take what the majority
views as immoral and legislate on that view to create criminal law. As with the
court, the state should rise to the responsibility of guaranteeing liberty for
all and not be manipulated to mandate moral codes.

I see this view as
quite pervasive and universal in the separation of religion and the state
except where the state is governed by a theocracy and all the citizens of that
state follow the same beliefs, tenets and doctrines. Where the citizens are not
of similar and equal beliefs, it behoves the state to err on the side of
secularity guaranteeing freedoms and liberties rather than codifying moral
views into laws.

Protection and dignity

In United States v. Windsor, which was brought to
challenge the Defence of Marriage Act of 1996
where the surviving spouse of a legally married sex-same couple in another
country, then recognised at the state level in the country of their residence was
not given federal estate tax exemption at by the Inland Revenue Service.

There are broader
issues particular to the United States but there are universal concepts to take
away from the opinion offered by the SCOTUS.

“In authorizing
same-sex unions and same-sex marriages, New York sought to give further
protection and dignity to that bond. For same-sex couples who wished to be
married, the State acted to give their lawful conduct a lawful status. This
status is a far-reaching legal acknowledgment of the intimate relationship
between two people, a relationship deemed by the State worthy of dignity in the
community equal with all other marriages. It reflects both the community's
considered perspective on the historical roots of the institution of marriage
and its evolving understanding of the meaning of equality.”

Whilst communities
around the world differ, they are evolving and whatever historical roots and
systems those communities might have, the institutions they hold dear are
coming under more persuasion towards more equality and this has applied
throughout history on matters of privilege, citizenship, gender, beliefs,
disability, sexuality and much else.

Laws injuring protection

Society strives
towards egalitarianism where the equality of opportunity is not defined by
status but through ability, character, merit and basic rights.

“DOMA seeks to
injure the very class New York seeks to protect. By doing so it violates basic
due process and equal protection principles applicable to the Federal
Government.”

Here, the SCOTUS
opines that there should not be an overarching statute that seeks to injure a
class that already receives protection from such injury.

It goes without
saying that the quest to protect a minority should of essence eventually have
the support of a higher power to ensure that minority receives protection
within the domain of that higher power – a process of time but where that
protection is refused there is just cause to challenge that view as a matter of
fairness, rights and justice.

“This is strong
evidence of a law having the purpose and effect of disapproval of that class.
The avowed purpose and practical effect of the law here in question are to
impose a disadvantage, a separate status, and so a stigma upon all who enter
into same-sex marriages made lawful by the unquestioned authority of the
States.”

Here, the SCOTUS
questioned an overarching law promulgated to disapprove, discriminate and
impose a disadvantage on a class, thereby stigmatising those who belong to a
class already given protection.

Eliminating inequality

“When New York
adopted a law to permit same-sex marriage, it sought to eliminate inequality;
but DOMA frustrates that objective through a system-wide enactment with no
identified connection to any particular area of federal law. DOMA writes
inequality into the entire United States Code.”

The SCOTUS is clear
in this by saying a federal law is writing inequality into the constitution,
having same before that, “Our obligation is to define the liberty of
all, not to mandate our own moral code.”

“The law in
question makes it even more difficult for the children to understand the
integrity and closeness of their own family and its concord with other families
in their community and in their daily lives.”

In general, the law
does not just affect the principals, it affects the innocent offspring of that intimate
relationship which is by no means illegitimate, but legal, valid and recognised
as the community has evolved in its understanding of such relationships.

Unnecessary burdens

“Under DOMA,
same-sex married couples have their lives burdened, by reason of government
decree, in visible and public ways. By its great reach, DOMA touches many
aspects of married and family life, from the mundane to the profound.”

Not only do they
have their lives burdened but unnecessarily burdened by reason of government
decree – this burden is what the SCOTUS sought to remove by declaring DOMA
unconstitutional.

Whilst we might
generally agree that marriage constitutes the union of a man and a woman, the
broader and wider definition of marriage today as society has evolved now is
the union of partners regardless of the pairing of genders – it is the
recognition of an intimate relationship of people who have committed to have
that relationship recognised and with it will come all the accoutrements and
benefits of having had that loving, intimate and committed relationship in life
and in death.

In Africa and beyond

In Africa where the
advent of anti-homosexual fervour and the promulgation of homophobic laws is
gaining traction, the communities have yet to reach that level of guaranteeing
liberties in such a way that their lawmakers do not preoccupy themselves with
mandating moral codes and criminalising views the majority consider immoral
conduct, but the opinions stated above will almost eventually lay the basis of
arguing the human rights issues of minorities beyond just the matter of
sexuality.

I am of the view
that when the core purpose of protecting the liberty of all is the guiding
principle of the courts above all else, in the hands of good human rights
lawyers, no law will remain in our statute books that seeks to discriminate,
denigrate, disapprove or stigmatise an African because they believe
differently, act differently, or espouse views and lifestyles that are
different and thereby all Africans will have equal access to justice, fairness
and be protected from menace, sanction or injury to live in peace regardless of
who they are.

2 comments:

RF
said...

Nice summary sir. And this is indeed, strong, cogent logic. However, I do not think the State can completely "hands-off" moral codes. It surely cannot be that mutual consent will always legalise conduct between two adults, regardless of the nature of the conduct.